A California federal court's decision not to call an en barc hearing on whether government agents can attach GPS tracking devices to vehicles parked in private driveways is likely to be appealed in the U.S. Supreme Court.

The U.S. Court of Appeals for the Ninth Circuit earlier this month declined to schedule an en banc hearing, or a hearing before all judges in the ninth circuit, as requested by the defendant in a drug-related case. The defendant was seeking to suppress evidence gathered against him by federal agents who attached a GPS device to his vehicle without first obtaining a warrant.

The defendant, Juan Pineda-Moreno of Oregon, claims that U.S. Drug Enforcement Agency agents violated his Fourth Amendment rights against unreasonable search by planting, without a warrant, a tracking device on a vehicle parked in his driveway in 2007. The agents were tracking Pineda-Moreno on suspicion that he belonged to a marijuana growing operation.

A three-judge panel of the appellate court in January rejected Pineda-Moreno's claims and ruled that his constitutional rights were not violated. The court this month rejected a petition by Pineda-Moreno for a rehearing of his case by the full Ninth Circuit panel of judges.

The appellate court's ruling essentially gives law enforcement agencies in the nine Western states under the Ninth Circuit's jurisdiction the legal authority to surreptitiously enter personal property and attach a GPS tracking device on vehicles parked there without first obtaining a warrant.

Over a four month period, DEA agents repeatedly monitored Pineda-Moreno's movements using different GPS tracking devices without obtaining a warrant. On two occasions, agents sneaked into his driveway before dawn to affix the tracking devices to the undercarriage of his Jeep.

Information gathered from the tracking led to Pineda-Moreno's subsequent arrest and indictment.

Pineda-Moreno pleaded guilty to the charges in an Oregon district court on the condition that he would be allowed to appeal the ruling to the Ninth Circuit court. The district court had rejected his request that the evidence obtained from the GPS devices be suppressed.

A three-judge Ninth Circuit panel of judges upheld the district court's ruling.

The decision was not unanimous. In a strongly worded dissent, Chief Judge Alex Kozinski said that because of the ruling, "1984 may have come a bit later than predicted, but it's here at last."

In the 10-page ruling, two of the Ninth Circuit judges held that the DEA agents did not violate Pineda-Moreno's constitutional rights. The judges ruled that because Pineda-Moreno's had not taken specific steps to exclude passersby from his driveway -- by installing a gate por posting no trespassing signs, for instance -- he could not claim reasonable privacy expectations.

The Ninth Circuit panel ruled that the actions by the agents were comparable to the delivery of newspapers to the house, or the retrieval of a ball accidently thrown under the vehicle by a neighbor.

Dissenting Judge Kozinski, however, contended that most people in the U.S don't expect that a car parked in their driveway "invites people to crawl under it and attach a [tracking] device. There is something creepy and un-American about such clandestine and underhanded behavior."

The Ninth Circuit's refusal to rehear the case highlights the continuing struggles that courts around the country are having over law enforcement's use of GPS devices to track an individual's movements.

In a decision also made earlier this month, an appeals court in Washington D.C denied the government's claims to warrantless GPS tracking. In that case, the judges hearing the case ruled that while warrantless GPS tracking might be permissible under some circumstance, continuous tracking over extended periods of time constituted a violation of Fourth Amendment rights against unreasonable search.

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